Under section 130(1) of the Fair Work Act 2009, there is no accrual of leave entitlements during a period where you are absent from work due to injury and receiving workers compensation payments (a compensation period).
However, section 130(2) provides leave can accrue during a compensation period if the taking or accruing of leave is permitted by compensation law.
Annual leave continues to accrue while you are still employed and receiving workers compensation benefits
The Workers Compensation Act 1987 (NSW) is a "compensation law" which permits a worker to receive payment for both workers compensation benefits and annual leave in respect of the same period (section 49).
In NSW Nurses and Midwives’ Association v Anglican Care [2014] FCCA 2580, Emmett J found section 49 of the NSW Act permits receipt of annual leave payments during a compensation period and therefore annual leave accrues to workers in NSW while they are absent from work and receiving weekly payments of compensation.
The same does not apply to sick leave which cannot be taken at the same time as workers compensation payments (section 50).
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DISCLAIMER: This blog is made available by Mortimer Fox Lawyers to give you general information and a general understanding of the law, not to provide specific legal advice. Unless otherwise stated, all information provided pertains to injuries sustained in or in connection with New South Wales. By using this blog you understand that there is no solicitor client relationship between you and Mortimer Fox Lawyers. This blog should not be used as a substitute for legal advice. If you require legal advice please contact us for an appointment. Liability limited by a scheme approved under Professional Standards Legislation.
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